Models of Confusion: Strutting the Line Between Agent and Manger, Employee and Independent Contractor in the New York Modeling Industry Ariel SodomskyNOTE - Fordham Intellectual Property, Media & Entertainment Law Journal

Models of Confusion: Strutting the Line Between Agent and Manger, Employee and Independent Contractor in the New York Modeling Industry Ariel SodomskyNOTE

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INTRODUCTION

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o most, the modeling world is one of glamour, glitz, and luxury.1 In reality, modeling constitutes more than just “being really, really, ridiculously good looking”2 and traveling the world; it is a job “like any other, where models are . . . hired to do a job they specialize in.”3 While model Linda Evangelista said that she would not get out of bed for less than $10,000 a day,4 models in 2012 on average were only making $18,750 a year.5 Fashion is a fickle industry where “one day you’re in and the next you’re out,”6 but modeling might be its most unpredictable and evolving area. On a daily basis, aspiring models are going to modeling agencies, and if selected, signing contracts to be represented by these agencies. Most new models will not question the provisions set forth in their contracts, and even if they did, “a fledgling unsigned model does not possess the leverage for negotiations.”7 In addition, these contracts likely contain ambiguities that will create issues for the models and the modeling agencies down the line. Eileen Ford, co-founder of Ford Models, “describes the modeling industry of the 1940s and 1950s as ‘chaotic’” but this term just as easily applies to the industry today.8

This Note discusses how New York employment law is illfitted to the modeling industry, specifically as to the employment relationship between a model and her agency. The law gives no clear answers as to whether modeling agencies are employment agencies or management companies in New York. In addition, much ambiguity exists as to whether models are employees or independent contractors of these agencies and of the agencies’ clients. Neither legislation nor court decisions have given clear answers, causing this uncertainty to persist for decades.

Part I of this Note describes how the modeling industry functions in New York—how the relationship between model and agency begins and the basic laws that govern these relationships. New York law is full of ambiguities that allow for different interpretations of the classifications of both modeling agencies and models. This Part will show how different parties, including the models, agencies, and agencies’ clients, interpret the applicable New York laws. This Part also discusses potentially helpful legislation that was vetoed in 2005,9 and the Model Alliance,10 an organization that was formed to stand up for models’ rights.

Part II discusses how proposed legislation and court decisions have examined the legal classifications of modeling agencies, their clients, and models in New York. While many cases have discussed the question of whether modeling agencies are employment agencies or managers under New York law, none has thus far given a definitive answer. There has also been no clarification through cases or proposed legislation as to whether models are employees or independent contractors of either the agency or the agency’s clients.

Part III discusses the direction that the modeling industry should move toward to resolve its issues and begin to treat models with at least the same protections that other workers already have under New York law. Model-specific legislation could give definitive classification to both modeling agencies and models and allow the industry to function to its fullest potential. There are many places to look, such as California law, French law, and federal law, to get ideas of what this model-specific legislation could look like. “[M]odeling is not a one-size fits all industry,” 11 and it is time that it starts getting treated like the unique, complex industry that it is.

* J.D. Candidate, 2015, Fordham University School of Law; B.A., 2012, Cornell University. The Author would like to thank Doreen Small for her invaluable guidance and expertise and the Volume XXV Fordham Intellectual Property, Media & Entertainment Law Journal Editorial Board for their hard work. The Author also thanks her family and friends for their unconditional love and support.